Judge tosses Abelove's challenge to Cuomo order

Schneiderman can continue to probe 2015 Troy shooting death

Updated 10:29 pm, Friday, August 11, 2017

Rensselaer County District Attorney Joel Abelove speaks during a press conference to talk about arrest made during Fractal Fest, a music festival that was held over the weekend on private property off Route 22 in Stephentown, on Tuesday, Aug. 1, 2017, in Troy, N.Y. (Will Waldron/Times Union) less

Rensselaer County District Attorney Joel Abelove speaks during a press conference to talk about arrest made during Fractal Fest, a music festival that was held over the weekend on private property off Route 22 ... more

A state Supreme Court justice has thrown out a petition by Rensselaer County District Attorney Joel E. Abelove that sought to undo the state attorney general's power to take over cases in which unarmed civilians are killed by police.

Abelove filed his court petition in March, about a week after investigators with Attorney General Eric Schneiderman's office used a search warrant to seize the district attorney's cellphone. The extraordinary seizure was part of an ongoing probe by the attorney general into Abelove's controversial handling of a case in which a Troy police officer was cleared in the April 2016 shooting death of a DWI suspect.

The attorney general's office is immersed in a two-pronged investigation that's examining both the actions of Troy police in the fatal shooting as well as Abelove's handling of the case.

Schneiderman last year accused the district attorney of doing an "end run" around Gov. Andrew Cuomo's 2015 executive order granting the attorney general's office authority to take over such cases. Schneiderman said Abelove rushed the shooting case in front a county grand jury that cleared the officer less than a week after the shooting — and after the attorney general's office said they wanted to review the case.

Abelove's petition questioned the constitutionality of the governor's order, claiming it usurped the authority of elected district attorneys. The petition also sought to disqualify Schneiderman's office from investigating Abelove due to a conflict of interest: Paul Clyne, an assistant attorney general, is a potential witness in the broader case — including any potential criminal prosecution of Abelove — because Clyne allegedly told the district attorney's office on the morning after the shooting that his office would not intervene in the investigation.

The attorney general's office, however, has denied Clyne made those statements. They also argue that his potential to be a witness in any part of the case would not create a conflict for the entire attorney general's office.

John W. Bailey, Abelove's attorney, said their case focused on the fact that Cuomo, when he signed the executive order two years ago, stated that while he believed district attorneys would appropriately handle fatal police incidents, he wanted to alleviate "public concerns ... that such incidents cannot be prosecuted at the local level without conflict or bias, or the public perception of conflict or bias."

Bailey said the governor's statements made the executive order "irrational" and affirmed that the order was not based on his personal views, but rather on those of a special-interest group.

"We elected our elected officials, including our governor, to act rational and to act on their best judgment," Bailey said, "not to delegate to a group of people — particularly since he disagrees with them."

Mott also struck down that portion of the argument, saying the statute giving the governor the ability to issue an executive order neither limits the governor's ability to issue one nor requires him to explain his decision for doing so.

"Thus, the authority to supersede (a local district attorney) is within the governor's sound discretion," Mott wrote in the 12-page decision.

Bailey said an appeal is planned.

The state district attorneys association, which has internally debated the constitutionality of Cuomo's order, voted last March not to file a motion in support of Abelove's petition.

Cuomo signed the order following a series of controversial fatal encounters between police and unarmed civilians in New York and across the nation. The order gave Schneiderman the power to conduct independent investigations in police encounters when, "in his opinion, there is a significant question as to whether the civilian was armed and dangerous at the time of his death."

In February, Cuomo signed another order that gave the attorney general specific authority to probe Abelove and to pursue charges against any person for unlawful acts "in any way connected with the incident and its subsequent investigation, including its grand jury presentation." Abelove personally presented the case to the Rensselaer County grand jury that cleared Sgt. Randall French in the fatal shooting of Edson Thevenin, 37.

The Times Union reported last year that French testified before the grand jury, but was given immunity from prosecution. Also, the grand jury did not hear testimony from two civilian witnesses whose accounts may have contradicted the police's version.

Schneiderman went to court last year seeking an order giving him access to Abelove's files on the fatal shooting. Abelove initially challenged the court petition but settled the case and agreed to turn over his files to the attorney general.

The shooting took place about 3:15 a.m. April 17, 2015, on Hoosick Street near the Collar City Bridge after a car driven by Thevenin was boxed in by two police cruisers following a brief chase that police said began when he fled a traffic stop. Abelove said Thevenin ran away as he was being given a field sobriety test by French, who pepper-sprayed Thevenin and ran after him.

Abelove said two police cruisers chased Thevenin and boxed in his vehicle. French's legs were allegedly pinned between his cruiser and Thevenin's car. Abelove said the officer fired eight shots at Thevenin, killing him. Police officials said they considered Thevenin was considered armed because he was using his vehicle as a weapon.

The attorney general's investigation is examining whether French was moving when he fired the shots.

"The Thevenin family, and the families and communities of all those involved in these cases, deserve answers — and our office is committed to pursuing those answers, without fear or favor," said Amy Spitalnick, a spokeswoman for Schneiderman.